Kerala has sought to make amends by keeping in abeyance its obnoxious proposal to abridge free speech by conferring unbridled powers on the police to arrest any one expressing or disseminating any matter deemed threatening, abusive, humiliating or defamatory to a person or a class of persons in any manner. But Chief Minister Pinarayi Vijayan should take heed of criticism and drop the measure altogether. It is worrying that such a draconian and ill-conceived ordinance was even promulgated. It is incredible that a State government crafted a law with elements declared unconstitutional by the Supreme Court, ignoring a major apex court verdict on the law of defamation, and which is repugnant to the provisions of the IPC, a central law, in two ways, besides going against one provision in the Cr.P.C.
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His defence that the amendment only targeted defamatory social media posts and would not curb reportage, political satire or expression of opinion is quite hollow, when seen in the light of the absence of any such narrow definition of the offence introduced by Section 118A in the Kerala Police Act. In Shreya Singhal vs. Union of India (2015), the top court struck down Section 66A of the IT Act. The section had criminalised the sending of any message through a computer resource that was grossly offensive, menacing, or caused annoyance, inconvenience, danger, insult, injury and intimidation. The Court found the offence was ‘overbroad’, that is, it was defined so widely that both innocent and offensive messaging could be brought under its ambit. The failure to define the offence narrowly fell foul of the constitutional protection for free speech and expression. The same judgment, for the same reason, also struck down Section 118(d) of the Kerala Police Act, which made causing annoyance in an indecent manner through verbal comments or on telephone an offence.
The new offence is also vaguely defined, and is made cognisable, whereas criminal defamation under the IPC is non-cognisable. Moreover, while upholding the validity of criminal defamation, the Court made it clear that no police officer can register an FIR for the offence; it can only be prosecuted as a private complaint, for Sec.199 Cr.P.C. says no court shall take cognisance of defamation unless the aggrieved party files a complaint. Further, Section 118A lays down a three-year prison term; it is two years under the IPC. By making defamatory utterances cognisable and raising the prison term, the Kerala ordinance effectively amends the IPC and Cr.P.C., a move for which the Centre’s assent is mandatory, as it is in conflict with central laws. The ordinance itself required prior presidential assent. It is regrettable that the State sought to arm itself with extraordinary powers to deal with a problem that can be dealt with through other provisions relating to stalking, harassment, criminal intimidation and verbal abuse.
